The Attorney General of Texas 

:jeptember 25, 1985 

JIM MATT’OX 

Attorney General 

Supreme Cowl Building 

P. 0. BOX 12549 

Austin. TX. 79711. 2549 

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San Antonio, TX. 792052797 

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An Equal OpportUqitYl 

Affirmative Action Employer 

Honorable Ray Far&bee @dIdOn No. JM-356 

Chairman 

State Affairs Committee Re: Whether Senate Bill No. 32, 

Texas State Senate Acts 1985. 69th Legislature, reP. 0. Box 12068, Capitol Station pealed article 4590-4. V.T.C.S.. 

Austin, Texas 78711 which relates to the removal of 

cornea1 tissue from a decedent 

Dear Senator Farabee: 

You ask whether Senate Bill No. 32, Acts 1985, 69th Leg., ch. 789 

at 5699, which is to be codified as article 4590-6, V.T.C.S.. would 

lmplledly repeal article 4590-4, V.T.C.S. Senate Bill No. 32 deals 

with removal of hvitman organs and tissue. Article 4590-4 deals with 

removal of cornea1 tissue. 

Generally. human organs and tissue may be removed for research or 

transplant only with the consent of the decedent's family or the prior 

consent of the ilrcedent. See V.T.C.S. art. 4590-4. In 1977 the 

legislature enacl,e:d a statutehat allows justices of the peace and 

medical examlnerrl to permit the removal of a dead person's cornea1 

tissue without c13nsent under the following conditions: (1) the 

decedent died ur&r circumstances requiring an Inquest by the justice 

of the peace or the medical examiner; (2) the justice of the peace or 

medical examiner knows of no objection by specified family members; 

and (3) the remyJa1 will not interfere with the Investigation or 

autopsy nor alter the post-mortem facial appearance. V.T.C.S. art. 

4590-4. 

Senate Bill No. 32 allows a medical examiner to authorize the 

removal of various human organs, including eyes, under similar 

circumstances. Uthough article 4590-4 and Senate Bill No. 32 are 

similar in structure and content, the procedures set out in Senate 

Bill No. 32 are more restrictive than those in article 4590-4 in 

several ways. Sl!nate Bill No. 32 allows only medical examiners, not 

justices of the Peace. to permit removal of organs. Also, under 

Senate Bill No. 32, the medical examiner must obtain consent to r-e 

non-visceral organs, including eyes, within the first four hours after 

death and after that he may remove organs without consent only upon 

"determining that no reasonable likelihood exists that [certain 

specified family members] can be identified and contacted." Article 
Honorable Ray Farabee - Paglr 2 (~~-356) 

4590-4 has no compar le requirement. 

r 

Article 4590-4 is more 

restrictive than Senat ‘: Bill No. 32 in that Senate Bill No. 32 

contains no requirement that removal of tissue not alter post-mortem 

facial appearance. Thus; article 4590-4. unlike Senate Bill No. 32. 

does not permit removal of ,the entire eye from the socket. 

Statutes may be repeallrd expressly or by implication. Repeals by 

implication are not fsvo.:ed and two statutes on the same subject 

should both be given ef$ec:t. if possible. Gordon v. Lake, 356 S.W.2d 

138, 139 (Tex. 1962). @IO, a general law does not ordinarily repeal 

a specific law by impl&cal::lon. Rather, the special law Is construed 

as an exception to tb general law. See Flowers v. Pecos River 

Railroad Co., 156 S.W&d :!60. 263-64 (TX 1941). These rules of 

construction support the’ conclusion that a statute governing removal 

of cornea1 tissue and a :Later statute governing removal of human 

tissue and organs generally should both be given effect. 

Another well establit,hed rule of construction, however, is that 

an enactment intended to embrace all the law on a certain subject 

repeals all former lawsion Ithat subject. McInnis v. State, 603 S.W.2d 

179 (Tex. 1980). It hs been suggested that this rule supports the 

conclusion that Senate,$i!.l. No. 32 impliedly repealed article 4590-4 

because Senate Bill No. :I;! was intended to embrace all law on the 

subject of removal of humzrr: tissue and organs without the consent of 

the decedent or his falpily. The legislative history of Senate Bill 

No. 32 shows, however,,s th,%t the premise of that argument -- that 

Senate Bill No. 32 was,.nt,ended to embrace all the law on the subject 

-- is incorrect. :i 

:,S 

The bill analysis to Senate Bill No. 32 pointed to the success of 

article 4590-4 in meetipg the demand for cornea1 tissue in Texas and 

stated that Senate Bil4 NC’. 32 would “expand” current statutes and 

allow “removal of other organs and tissues under well-controlled 

circumstances.” We tl#nl: the comments in the bill analysis are 

evidence that the leg&sl%ture intended Senate Bill No. 32 to be 

cumulative of article 4590-4. 

Even more convinc@g is that a bill was introduced in the same 

legislative session in yhilh Senate Bill No. 32 was enacted that would 

have amended article +$9(1-,4 to change the procedure for obtaining 

consent to remove cornea1 tissue. S.B. No. 1219, Acts 1985, 69th Leg. 

That bill was passed % t’1e Senate on April 18. Senate Bill No. 32 

was passed in the Senatp 0:~ the same day. Transcript, Senate Session, 

April 18, 1985. Seoaqg Ml1 No. 1219 was referred to in a Senate 

discussion of Senate B,ul No. 32 on that day. Thus, we think it is 

clear that the Senate yes wuare of the existence of each bill when it 

passed the other and tkat it intended the subject matter of article 

4590-4 to be contained$n ,% statute separate from Senate Bill No. 32. 

p. 1630 
Honorable Ray Farabee - Page 3 (JM-356) 

Although Senate Bill No. 1219 was never considered by the entire 

Rouse, at least the members of the committee on Public Health, which 

considered it, were awa'ce of the existence of both bills. The 

legislature did not intend for Senate Bill No. 32 to embrace the 

entire subject of removal of human organs and tissue without consent. 

Thus, even under McInnis, Senate Bill No. 32 did not impliedly repeal 

article 4590-4. 

SUMMARY 

Senate Bill ho. 32, Acts 1985, 69th Leg.,:which 

is to be codified as article 4590-6. V.T.C.Sd, did 

not impliedly ropeal article 4590-4, V.T.C.S: 

Ve 4 

JIM MATTDX 

Attorney General. of Texas 

TOM GREEN 

First Assistant Attorney Gt!neral 

DAVID R. RICHARDS 

Executive Assistant Attorney General 

ROBERT GRAY 

Special Assistant Attorne:r General 

RICK GILPIN 

Chairman, Opinion Cormnittec! 

Prepared by Sarah Woelk 

Assistant Attorney Genera:1 

APPROVED: 

OPINION COMMITTEE 

Rick Gilpin, Chairman 

Colin Carl 

Susan Garrison 

Tony Guillory 

Jim Hoellinger 

Jennifer Riggs 

Nancy Sutton 

Sarah Woelk 

p. 1631